National Fedration of Federal Employees, Local 1671 (Union) and Adjutant General, Arkansas, National Guard (Activity)

[ v01 p122 ] 01:0122(11)NG
The decision of the Authority follows:

1 FLRA No. 11
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1671
(Union)
and
ADJUTANT GENERAL, ARKANSAS
NATIONAL GUARD
(Activity)
FLRC No. 78A-151
DECISION ON NEGOTIABILITY ISSUES /1/
PROVISION I
ARTICLE 25.6
WHEN THE SELECTING OFFICIAL, FOR A VALID REASON, REQUESTS ADDITIONAL
NAME(S) BE ADDED TO A
REFERRAL AND SELECTION REGISTER BECAUSE AN EMPLOYEE NAMED ON THE
ORIGINAL REGISTER CANNOT BE
SELECTED, AND OTHER NAMES ARE ADDED, A COPY OF SELECTING OFFICIAL'S
REASON(S) FOR WHICH THE
INDIVIDUAL CANNOT BE SELECTED WILL BE MADE AVAILABLE TO THE UNION,
UPON WRITTEN REQUEST OF THE
EMPLOYEE.
AGENCY DETERMINATION
THE AGENCY HEAD DETERMINED, WHILE REVIEWING THE ABOVE-QUOTED
PROVISION OF A NEGOTIATED AGREEMENT PURSUANT TO SECTION 15 OF THE ORDER,
/2/ THAT THE PROVISION IS NONNEGOTIABLE BECAUSE IT VIOLATES THE PRIVACY
ACT OF 1974. /3/
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE PROVISION VIOLATES THE PRIVACY ACT OF
1974 AND THEREFORE WOULD NOT BE NEGOTIABLE UNDER SECTION 11(A) OF THE
ORDER. /4/
OPINION
CONCLUSION: THE PROVISION DOES NOT CONFLICT WITH THE PRIVACY ACT OF
1974. THUS, THE AGENCY DETERMINATION THAT THE PROVISION IS
NONNEGOTIABLE WAS IMPROPER AND, PURSUANT TO 5 C.F.R. 2411.28(1978), /5/
IS SET ASIDE. /6/
REASONS: THE DISPUTED PROVISION WOULD REQUIRE THAT WHEN "THE
SELECTING OFFICIAL, FOR A VALID REASON, REQUESTS ADDITIONAL NAMES BE
ADDED TO A REFERRAL AND SELECTION REGISTER BECAUSE AN EMPLOYEE NAMED ON
THE ORIGINAL REGISTER CANNOT BE SELECTED, AND OTHER NAMES ARE ADDED, A
COPY OF THE SELECTING OFFICIAL'S REASON(S) FOR WHICH THE EMPLOYEE CANNOT
BE SELECTED WILL BE MADE AVAILABLE TO THE UNION, UPON WRITTEN REQUEST OF
THE EMPLOYEE." THE AGENCY CLAIMS THAT SUCH REQUIREMENT VIOLATES THE
PRIVACY ACT OF 1974. WE FIND NO MERIT IN THE AGENCY'S CLAIM.
IN PASSING THE PRIVACY ACT OF 1974, THE CONGRESS, HAVING SPECIFICALLY
FOUND THAT "THE PRIVACY OF AN INDIVIDUAL IS DIRECTLY AFFECTED BY THE
COLLECTION, MAINTENANCE, USE, AND DISSEMINATION OF PERSONAL INFORMATION
BY FEDERAL AGENCIES," /7/ STATED THAT THE GENERAL "PURPOSE OF THIS ACT
IS TO PROVIDE CERTAIN SAFEGUARDS FOR AN INDIVIDUAL AGAINST AN INVASION
OF PERSONAL PRIVACY . . ." /8/ TO THIS END, THE ACT PROVIDES, AMONG
OTHER THINGS, FOR ACCESS BY AN INDIVIDUAL TO RECORDS CONCERNING HIM
WHICH ARE MAINTAINED BY GOVERNMENT AGENCIES; THE ACT ALSO PREVENTS
ACCESS TO SUCH RECORDS BY PARTIES OTHER THAN THAT INDIVIDUAL TO WHOM THE
RECORD PERTAINS WITHOUT SUCH INDIVIDUAL'S CONSENT. (THE ACT ALSO
PROVIDES FOR EXEMPTIONS TO THESE REQUIREMENTS IN CERTAIN INSTANCES,
WHICH ARE NOT RELEVANT HERE.)
THE PROVISION AT ISSUE HERE REQUIRES, IN THE CONTEXT OF A
SPECIFICALLY DEFINED AND LIMITED SET OF CIRCUMSTANCES, THAT CERTAIN
INFORMATION (ASSUMED TO BE WITHIN THE CONTROL OF THE AGENCY) PERTAINING
TO A PARTICULAR EMPLOYEE BE GIVEN TO THE UNION, UPON THE WRITTEN REQUEST
OF THAT EMPLOYEE. THUS THE PROVISION, ON ITS FACE, SATISFIES THE TWO
BASIC REQUIREMENTS OF THE PRIVACY ACT ALLUDED TO ABOVE. THAT IS, THE
INFORMATION REQUIRED TO BE GIVEN TO THE UNION INVOLVES ONLY INFORMATION
PERTAINING TO A PARTICULAR EMPLOYEE; IT DOES NOT INVOLVE ANY
INFORMATION ABOUT ANY OTHER EMPLOYEE. MOREOVER, SUCH INFORMATION MUST
BE GIVEN TO THE UNION ONLY WITH THE SPECIFIC CONSENT, I.E., THE WRITTEN
REQUEST, OF THAT EMPLOYEE TO WHOM THE INFORMATION PERTAINS. THUS, WE DO
NOT FIND THAT THE PROVISION CONFLICTS IN ANY MANNER WITH THE PRIVACY ACT
OF 1974. /9/ ACCORDINGLY, WE CANNOT SUSTAIN THE AGENCY'S DETERMINATION
THAT THIS PROPOSAL IS NONNEGOTIABLE.
PROVISION II
ARTICLE 26.6
TEMPORARY PROMOTION: AN EMPLOYEE DETAILED TO A HIGHER GRADE POSITION
FOR OVER SIXTY (60)
DAYS WILL BE GIVEN A TEMPORARY PROMOTION ON THE 61ST DAY OF THE
DETAIL.
AGENCY DETERMINATION
THE AGENCY HEAD DETERMINED, WHILE REVIEWING THE ABOVE-QUOTED
PROVISION OF A NEGOTIATED AGREEMENT PURSUANT TO SECTION 15 OF THE ORDER,
/10/ THAT THE PROVISION INTERFERES WITH MANAGEMENT'S DISCRETION TO
DETAIL EMPLOYEES TO HIGHER-GRADE POSITIONS UNDER SECTION 12(B)(2) OF THE
ORDER AND THEREFORE IS NOT NEGOTIABLE.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE PROVISION VIOLATES SECTION 12(B)(2) OF
THE ORDER AND THEREFORE IS NOT NEGOTIABLE.
OPINION
CONCLUSION: THE PROVISION DOES NOT VIOLATE SECTION 12(B)(2) OF THE
ORDER. ACCORDINGLY, THE AGENCY'S DETERMINATION OF NONNEGOTIABILITY WAS
IMPROPER AND, PURSUANT TO 5 C.F.R. 2411.28(1978), /11/ IS SET ASIDE.
/12/
REASONS: THE AGENCY CLAIMS THAT THE REQUIRED TEMPORARY PROMOTION OF
AN EMPLOYEE ASSIGNED TO A HIGHER-GRADE POSITION AFTER 60 DAYS VIOLATES
MANAGEMENT'S RESERVED RIGHTS UNDER SECTION 12(B)(2) OF THE ORDER. /13/
WE CANNOT AGREE WITH THIS CONTENTION.
IN OUR VIEW THERE IS NO MATERIAL DIFFERENCE BETWEEN THE INSTANT
PROVISION AND A PROVISION CONSIDERED BY THE FEDERAL LABOR RELATIONS
COUNCIL IN ITS VETERANS ADMINISTRATION, ATLANTA REGIONAL OFFICE DECISION
/14/ (INSOFAR AS THAT PROVISION CALLED FOR A TEMPORARY PROMOTION UPON
ASSIGNMENT FOR MORE THAN 60 DAYS TO A HIGHER-GRADE POSITION). THERE, IN
A DECISION PUBLISHED SUBSEQUENT TO THE FILING OF THE INSTANT APPEAL, THE
COUNCIL, IN RESPONSE TO THE AGENCY'S CONTENTION THAT THE PROVISION
VIOLATED SECTION 12(B)(2), STATED: /15/
THE "TEMPORARY PROMOTION" CALLED FOR BY THE DISPUTED PROVISION IS
SIMPLY A MINISTERIAL ACT
WHICH IMPLEMENTS THE DECISION AND ACTION TAKEN BY THE AGENCY ITSELF
IN SELECTING AND ASSIGNING
THE PARTICULAR EMPLOYEE TO THE HIGHER-GRADE POSITION. NOTHING IN THE
PROVISION INTERFERES IN
ANY MANNER WITH THE RIGHT OF THE AGENCY TO MAKE SUCH DECISION OR
ACCOMPLISH SUCH ACTION, AND
THUS NOTHING IN THE PROVISION IMPAIRS THE AGENCY'S RIGHT TO DETERMINE
WHETHER AND WHOM
TEMPORARILY TO PROMOTE. ACCORDINGLY, WE FIND THAT THE DISPUTED
PROVISION IS NOT VIOLATIVE OF
SECTION 12(B)(2) OF THE ORDER.
SINCE THE PROVISIONS ARE MATERIALLY INDISTINGUISHABLE, WE FIND, BASED
UPON THE ANALYSIS IN THE VETERANS ADMINISTRATION, ATLANTA REGIONAL
OFFICE CASE, THAT THE INSTANT PROVISION DOES NOT VIOLATE SECTION
12(B)(2) OF THE ORDER. ACCORDINGLY, WE CANNOT SUSTAIN THE AGENCY'S
DETERMINATION OF NONNEGOTIABILITY AS TO THE PROVISION.
RONALD W. HAUGHTON
CHAIRMAN
HENRY B. FRAZIER III
MEMBER
ISSUED: MARCH 29, 1979
/1/ IN ACCORDANCE WITH SECTION 2400.4 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS (44 FED. REG. 5(1979)), WHICH ARE CURRENTLY IN
EFFECT UNDER SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (92 STAT. 1215), THIS DECISION IS RENDERED UNDER THE
RULES AND REGULATIONS SET FORTH IN 5 C.F.R. PART 2411, ET SEQ. (1978).